Pratt v. Gulfport-Biloxi Regional Airport Authority
| Docket Number: | 2009-CA-01202-COA Linked Case(s): 2009-CA-01202-COA ; 2009-CT-01202-SCT ; 2009-CT-01202-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-01-2011 Opinion Author: Roberts, J. Holding: Reversed and remanded. |
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| Additional Case Information: |
Topic: Personal injury - Tort Claims Act - Discretionary function - Section 11-46-9(1)(d) - Dangerous condition - Open and obvious - Section 11-46-9(1)(v) Judge(s) Concurring: King, C.J., Griffis, Carlton and Maxwell, JJ. Non Participating Judge(s): Ishee, J. Dissenting Author : Lee, P.J. With Separate Written Opinion Dissent Joined By : Myers, P.J., Irving and Barnes, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 07-02-2009 Appealed from: Harrison County Circuit Court Judge: Lawrence Paul Bourgeois Disposition: Summary Judgment Entered for the Appellee Case Number: A2401-2006-104 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Dr. Jerry Pratt |
KENNETH M. ALTMAN |
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| Appellee: | Gulfport-Biloxi Regional Airport Authority d/b/a Gulfport-Biloxi International Airport | CY FANECA, TRACE D. MCRANEY | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Tort Claims Act - Discretionary function - Section 11-46-9(1)(d) - Dangerous condition - Open and obvious - Section 11-46-9(1)(v) |
| Summary of the Facts: | Dr. Jerry Pratt, a United States Air Force physician, sued the Gulfport-Biloxi Regional Airport Authority, a governmental entity protected by the provisions of the Mississippi Tort Claims Act, after he slipped and fell down a wet set of aluminum “airstairs.” The Airport successfully moved for summary judgment. Dr. Pratt appeals. |
| Summary of Opinion Analysis: | Issue 1: Discretionary function Under section 11-46-9(1)(d), a governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee. To determine whether an act or a failure to act is a discretionary function, the court considers whether the activity involved an element of choice or judgment, and if so, whether the choice or judgment in supervision involves social, economic or political policy alternatives. The circuit court found that Dr. Pratt failed to point out any procedures, guidelines, or regulations that outlined how to maintain the safety of the stairwells and would, therefore, render the Airport’s actions ministerial in nature. Dr. Pratt claimed that the Airport was liable because it did not place that anti-slip tape on a sufficient portion of the surface of the airstairs. In other words, Dr. Pratt’s lawsuit was not based on the decision whether to apply anti-slip tape – it was based on the manner in which the anti-slip tape was applied. The decision by two maintenance personnel to place anti-slip tape on two feet of the center of the four-foot stair surface was not based on any social, economic, or political policy alternatives. The decision to place anti-slip tape only on the center portion of the airstairs did not involve any “policy” at all. Rather, it was a completely random decision by two employees who were not authorized to make any “policy” decisions. The Airport did not present any evidence that it made a policy decision to leave the outer two feet – which were adjacent to the handrails – uncovered by anti-slip tape. Likewise, the Airport did not present any evidence that the maintenance employees neglected to place anti-slip tape over the entire stair surface because it had a limited supply of anti-slip tape. Since the Airport failed to demonstrate that there was no genuine issue of material fact regarding whether its decision to place anti-slip tape on only a portion of the stair surface involved a policy decision, the court erred in granting summary judgment on this ground. Issue 2: Open and obvious Section 11-46-9(1)(v) states that a governmental entity shall not be liable for failing to warn of a dangerous condition that was open and obvious. During his deposition, Dr. Pratt claimed that the danger was not obvious to him and he stated that he had to step onto the exposed area of the aluminum stair surface because he could not hold the handrail if he walked down the center portion of the stairwell that was covered by anti-slip tape. Dr. Pratt’s expert submitted an affidavit that supported Dr. Pratt’s argument that the danger of slipping was neither open nor obvious. When opposing witnesses swear to contradictory, material facts, summary judgment is not appropriate. Consequently, there is a genuine issue of material fact regarding whether the dangerous condition of the wet, slippery steps was open and obvious and the circuit court erred when it concluded that the Airport was entitled to summary judgment based on section 11-46-9(1)(v). |
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